| Employer: Express Scripts, Inc. | Division of Workers’ Compensation Department of Labor and Industrial Relations of Missouri Jefferson City, Missouri |
| Additional Party: Second Injury Fund |
| Insurer: Sentry Insurance Co. | Checked by: MDL |
| PRELIMINARIES |
| A hearing was held on December 3, 2008, at the Division of Workers’ Compensation in the City of St. Louis, Missouri. This case wasconsolidated for trial with Injury No. 06-124716, which is the subject of a separate Award. Florence Bills (“Claimant”) was represented by Mr. Thomas Gregory. Express Scripts, Inc. (“Employer”), and itsInsurer Sentry Insurance Co., were represented by Mr. Mark Bates. The Second Injury Fund (“SIF”) was represented by Assistant Attorney General Kareitha Osborne. Mr. Gregory requested a fee of 25% of Claimant’s award.The parties stipulated that on or about August 25, 2006, Claimant was an employee of Employer; venue is proper in the City of St. Louis;Employer received proper notice of the injury; and the claim was timely filed. The parties further stipulated Claimant was earning an average weekly wage of 474.02 resulting in applicable rates of compensation of 316.01 for Total Disability benefits andPermanent Partial Disability (“PPD”) benefits.Employer denied liability for this claim and has paid no benefits.The issues for resolution by hearing are: Whether Claimant sustained an accidental injury arising out of and in the course of employment on or about August 25, 2006; medical causation; liability ofEmployer for past medical benefits of $11, 115.55; liability of employer for future medical care; nature and extent of permanent partial disability; whether Claimant is permanently and totally disabled; and liability of the SIF. |
| FINDINGS OF FACT |
| Claimant is a 46 year old woman who graduated from high school in 1979, and attended two years of college. She studied child care, and never obtained a college degree.From 1979 to 1983 she worked in a Day Care facility caring for abused children. In 1983 she took time off work to have a child, and returned to the work force in 1986. From 1986 to 1997 she worked in the banking industry in various positions.In 1997, Claimant went to work for a cable company in Customer Service. From 1998 to 2002 she lived in Washington D.C. In 2002 she resigned and returned to St. Louis.In October 2002 Claimant began working for Employer as a Pharmacy Technician. She sat in a cubicle which was in a maze of small cubicles, with approximately 200 people. The ventilation was poor.Claimant has suffered from allergies since she was five years old. Over the years, her asthma attacks have been triggered by cold air, weather changes, grass, mold, chemicals, trees, cats and dogs. When she has an asthma attack, her chest becomes extremely tight and she begins to wheeze. When she has an asthma attack she takes her medications, and one of her three or four inhalers. She also has a nebulizer, and has occasionally taken it to work with her. Sometimes her attacks subside with the use of medications, and sometimes they do not. When they do not, she might have to call 911. Claimant has been hospitalized numerous times in the past, and has been intubated twice, once in 1997, and again in 2002.Claimant has been hospitalized every year or two since she was a small child. In Washington, D.C., her asthma attacks increased, and she was hospitalized seven times. The increasing frequency of her asthma attacks was one of the reasons she returned to St. Louis. |
| In 2002, when she returned to St. Louis, she became an established patient of Dr. Kulczycki, an allergy |
specialist at Barnes Hospital, and she continues to treat with him. Following her return to St. Louis, Claimant had the following asthma attacks which were serious enough to require hospitalization: In May 2004, Claimant was hospitalized at DePaul Hospital for four days after an asthma attack at work when exposed to 409 cleaning solvent. In July 2005, Claimant was hospitalized at DePaul when she was suffering from an upper respiratory illness. In September 2005, she was hospitalized at Christian Hospital Northeast. In January 2006, Claimant was admitted to Barnes Hospital for four days. In February and April 2006 Claimant was admitted to Barnes Hospital.
In early 2006, Claimant was moved to the work station of an employee who was on medical leave. The employee owned five cats and three dogs, and there was animal dander at the work station. Because her asthma attacks increased as a result of her exposure to animal dander at work, Dr. Kulczycki wrote the following letter to Employer:
"Ms. Bills is a patient under my care for allergic rhinitis, asthma, and recurrent sinusitis. She is extremely allergic to cats. It is critical for her health and work productivity that she have a work environment free of cat dander and irritants. I recommend that she not share desks, chairs, etc. with workers who have cats, nor work near them. As you may know, 30 % of the U.S. population has a cat and cat dander is carried on peoples' clothes. Also, she should not be near highly perfumed workers or cleaning chemicals."
Claimant turned this letter into Employer's Human Resources department. Claimant saw Dr. Kulczycki on August 21, 2006, and Dr. Kulczycki noted her symptoms were poorly controlled in some part due to her inability to eliminate environmental triggers and to poor control of her nasal allergy symptoms. He stated Claimant was on a good asthma regimen, and he continued some of her medications, and prescribed some additional medications.
On August 25, 2006, while working for Employer, Claimant suffered an asthma attack. Claimant was working and had her back towards the aisle, when she felt her chest tighten. She reached for her medication and started to use it. She turned around and saw 409 cleaner on the desk across from her. She asked her co-worker not to use the 409, and was told he had already used it. Claimant's symptoms continued to worsen, and 911 was called. Claimant was taken to DePaul Hospital where she was admitted, and remained for treatment for two days.
The records from DePaul indicate Claimant complained of swelling, shortness of breath, and her throat closing with sudden onset of symptoms. She was administered IV steroids and an epi-injection in the Emergency Room, and diagnosed with acute bronchospasm most likely secondary to angiodema, allergic reaction to 409, and acute asthma exacerbation most likely attributed to an allergic reaction.
Claimant followed up with Dr. Kulczycki after her release from the hospital. She missed six weeks of work following that hospitalization, and received sick pay from Employer. A Report of Injury was filed indicating this was a work injury.
After she returned to work Claimant still had some wheezing and shortness of breath, but suffered no additional attacks until November 8, 2006, approximately one month after she returned to work. This incident occurred over two days. When Claimant got to work on November 7, 2006, she felt wheezing and chest tightness and had a productive cough. She was told there was painting going on in the building not near her, but the fumes were affecting her. She went home immediately, and when she checked with her supervisor, she was told to return the next day, because the painting would be completed.
Claimant returned to work on November 8, 2006, but the painting was still going on. She tried to work, but her symptoms began to worsen, and she developed wheezing, chest tightness, and shortness of breath, and she was taken by ambulance to DePaul Health Center where she was admitted and remained an inpatient from November 8, 2006 to November 12, 2006. During that hospitalization she was diagnosed with asthma exacerbation secondary to environmental exposure.
Claimant was off work for approximately one month, and she returned to work on December 11, 2006, and
was transferred to a different building. On that occasion, a co-worker had sprayed some perfume, which caused her to become symptomatic. She left work and sought treatment with Dr. Kulczycki. Claimant has not returned to work, and was terminated by Employer because they were unable to accommodate the environmental restrictions imposed by her doctor, and because she was missing